Brett Turner, Senior Attorney, National Legal Research Group

     A panel opinion has been released in Kitchen v. Herbert, the first Circuit Court case to decide the same-sex marriage issue after Windsor. The opinion holds that Utah's constitutional and statutory provisions barring same-sex marriage are an unconstitutional denial of due process.

     The majority reasoned that the right to marriage is fundamental and exists without any reference to any characteristics of the parties whose marriage is being regulated. In support, it cited case law holding that the right to marry applies to interracial couples, delinquent child support obligors, and prison inmates. From these cases, it extracted a general principle that the right to marriage is inherently and necessarily universal. "We cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it." Slip op. at 35-36.

     The majority opinion lacks some of the eloquent rhetoric on the policy reasons for permitting same-sex marriage that has marked some of the previous district court opinions.  The key passage is rather dry and technical, concluding that because the right to marry has been extended to such a wide variety of opposite-sex couples, it is universal and must therefore apply to same-sex couples.

     The court expressly rejected the argument that the validity of same-sex marriage should be decided by the electoral process.

Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

Id. at 62. 

     The dissenting opinion is the first federal opinion to argue that there should be no federal right to same-sex marriage. It stressed that the future of same sex marriage should be decided by elections, not by judges. "If the States are the laboratories of democracy, requiring every state to recognize same‑gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head." Dissent at 2.  The opinion identifies three reasons why the right to marriage does not extend to same-sex couples:

First, same‑gender marriage is a very recent phenomenon; for centuries "marriage" has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term "marriage" as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a "right to interracial marriage," or a "right to inmate marriage" cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.

Brett Turner, Senior Attorney, National Legal Research Group

    Arguments have now been heard in the two Tenth Circuit cases (Kitchen and Bishop) and in the Fourth Circuit case (Bostic). These are likely to be the first post-Windsor circuit court cases addressing same-sex marriage. None of the three cases have yet been decided.

     In the meantime, the district courts continue to hold unanimously that restrictions upon same-sex marriage are unconstitutional. In Baskin v. Bogan, No. 1:14-CV-00355-RLY, 2014 WL 1814064 (S.D. Ind. May 8, 2014), the court granted a temporary restraining order against enforcement of Indiana's rule against recognition of out-of-state same-sex marriages. Baskin was another sad case in which one of the parties to the marriage was terminally ill and likely to die before the end of the litigation. Entry of a restraining order was therefore the only realistic way in which the parties could ever be married. Noting the consensus of opinions across the country, the court found it likely that the plaintiff would prevail on the merits. 

     In Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014), the court held that Idaho's constitutional and statutory provisions barring same-sex marriage are unconstitutional. The court expressly found that the right to marry is fundamental and extends to same-sex couples. The court construed Windsor to hold that restrictions on same-sex marriage are subject to heightened scrutiny. It then found that the restrictions at issue did not survive that scrutiny. Latta avoided the more troublesome issue of whether restrictions on same-sex marriage have a rational basis by holding that a higher test applied.

     In Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014), the court held that a Pennsylvania statutory provision barring same-sex marriage is nconstitutional. The court held that the right to marry is fundamental, and that it applies to same-sex couples. It therefore applied heightened scrutiny, and found that the provisions failed that test.  

     In Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014), the court held that Oregon's constitutional provision restricting same-sex marriage was unconstitutional. The court held that the measure did not survive even rational basis review.

     As this blog has previously argued, holdings that restrictions on same-sex marriage lack a rational basis are problematic. Many Americans voted for such restrictions in democratic elections; many still believe that marriage should be limited to persons of the opposite sex. It is clear now that the views of these Americans have not prevailed, and that a federal right to same-sex marriage is likely to be created.

Brett Turner, Senior Attorney, National Legal Research Group 

     All of the recent district court decisions requiring various states to recognize same-sex marriage have been appealed. This short update will set forth in one place the schedule of the various appeals.

     The Utah case, Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013), will be heard on an expedited schedule. Oral argument is set for April 10.

     The Oklahoma case, Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014), has also been expedited.  Oral argument is scheduled for April 17.

     The Virginia case, Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), has also been expedited. It will be heard between May 12 and May 15. See Harris v. Rainey, 5:13CV00077, 2014 WL 1292803 (W.D. Va. Mar. 31, 2014). Harris noted that the plaintiffs in another Virginia case have been granted leave to intervene in the appeal, and stayed the other case pending decision of the appeal. 

     The first post-Windsor decision was the Ohio case, Obergefell v. Kasich, No. 1:13BCVB501,
2013 WL 3814262 (S.D. Ohio July 22, 2013). The Sixth Circuit refused to expedite the appeal in that case. No reasons were stated, but one of the partners to the marriage in that case was terminally ill, and is now deceased. The initial brief on the appeal is due on April 10. 

     The Kentucky case, Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), will also be heard in the Sixth Circuit. One source suggests that the Sixth Circuit is unlikely to expedite the appeal. But the refusal to expedite in Obergefell may have been based upon the unusual postdeath nature of the appeal. 

     The Michigan case, DeBoer v. Snyder, 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014), will also be heard in the Sixth Circuit. A motion to expedite the appeal has been filed,
but not decided as of this writing.  If the motion is denied, initial briefs would be due before the end of June.

Brett Turner, Senior Attorney, National Legal Research Group

     A Michigan federal court has joined the growing consensus of federal decisions holding that all restrictions upon same-sex marriage are per se unconstitutional. DeBoer v. Snyder, 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014).

     DeBoer adopted the broad rationale that there is no rational basis for legislation limiting same-sex marriage. The court expressly rejected an argument that same-sex marriages are a suboptimal environment for raising children, accepting expert testimony that children fare equally well, regardless of whether they are raised by opposite-sex or same-sex couples.

     The Court finds Rosenfeld's testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong "no differences" consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert witness report, which defendants did not challenge:

Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute.

Pls.' Ex. 30 at ¶ 21. In fact, the 2004 Council of Representatives of the American Psychological Association ("APA") unanimously voted in favor of issuing a position statement that "research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish." Pls.' Ex. 111 at 2.

Id. at *4 (emphasis added).

Brett Turner, Senior Attorney, National Legal Research Group

       Two more decisions have held that the U.S. Constitution requires broader acceptance of same-sex marriage than state law presently permits.

Kentucky

      In Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), the court held that Kentucky was required to recognize out-of-state same-sex marriages, and that Kentucky's constitutional and statutory provisions barring such recognition are unconstitutional. The court relied entirely upon a Fourteenth Amendment due process theory. Because no clear majority of Justices in Windsor applied a higher standard, Bourke used the rational-basis test.  It nevertheless found no rational basis for refusing to recognize out-of-state same sex marriages. The effect of the Kentucky provisions was to identify a group of state-sanctioned marriages (same-sex marriages from other states) and subject them to unequal and demeaning treatment. The only justification alleged in support of the provisions was to preserve a traditional definition of marriage as a relationship between persons of opposite sexes. But the court held that tradition alone cannot justify discriminatory treatment.

      Interestingly, Bourke did not expressly rely on a finding that Kentucky's provisions against same-sex marriage had been enacted with discriminatory intent. It is therefore a stronger opinion than that in Obergefell v. Kasich, which this blog criticized here.

      But Bourke still ignores that portion of the Windsor opinion that held that recognition of marriages is uniquely a subject for state law. That portion clearly implies that states may choose either to recognize or not recognize same-sex marriage. If there is literally never any rational basis for recognizing out-of-state same-sex marriages—and that is what the Bourke court held—then Windsor would not have placed so much emphasis upon state law. 

      In this author's opinion, the federalism portion of the Windsor opinion was not intended to be meaningless. The validity of marriages is a subject over which state legislatures have particularly great power, and a subject over which the federal government has particularly little power. A strong majority of Kentucky citizens have chosen to place restrictions upon the recognition of same-sex marriage. The decision made by these citizens should not lightly be discarded as irrational.

     There are especially strong practical reasons why federal courts should not dismiss all opposition to same-sex marriage as irrational. Recognition of same-sex marriage is a fundamental social change. In a democracy, fundamental social changes should result from elections, not from court decisions. 

     Only in 2012 did same-sex marriage begin to show strength at the ballot box. This showing was very important, for it offered a path to recognition of same-sex marriage that was relatively free of divisive controversy. If a majority of voters choose to reject restrictions upon same-sex marriage, that rejection will be a clear basis for accepting fundamental social change. If the voters reject same-sex marriage in a sufficiently large number of states, that may even provide a basis for applying constitutional theories to force recognition of same-sex marriage nationwide.

Brett Turner, Senior Attorney, National Legal Research Group

     A federal district court in West Virginia has released an opinion addressing questions of abstention and standing in same-sex marriage litigation. McGee v. Cole, Civ. No. 3:13-24068, 2014 WL 321122 (S.D. W. Va. Jan. 29, 2014). The opinion does not reach the merits.

     McGee is an action by gay couples living in West Virginia, challenging that state's statutory restrictions upon same-sex marriage. The plaintiffs argue both that the restrictions upon same- sex marriage are substantively unconstitutional and that the restriction against the recognition of out-of-state same-sex marriage is procedurally unconscionable. 

Abstention

   The defendants moved to dismiss the complaint on the ground of Burford abstention. Burford abstention applies when a case presents difficult questions of state law, the importance of which transcends the case at hand, or where adjudication in a federal forum would disrupt a state’s attempt to establish coherent policy on a matter of public importance. First Penn-Pac. Life Ins. Co. v. Evans, 304 F.3d 345, 348 (4th Cir. 2002).

     The court rejected the first basis for Burford abstention. McGee did not present a difficult question of state law. West Virginia state law is perfectly clear: Same-sex marriages are never recognized. The issue is whether West Virginia state law violates the federal Constitution. That is a question of federal law, not state law.

     The court also rejected the second basis for Burford abstention. There have been sporadic attempts either to repeal the West Virginia statutes or to write them into the state constitution, and the defendants argued that these attempts should be respected and permitted to continue. "Defendants point to no cases, however, suggesting that legislative efforts to define domestic relations justify federal court abstention, and the Court has not found any." McGee, 2014 WL 321122, at *7.

     It would also seem that if some sort of deference to state legislative action is appropriate, it should be appropriate only where that action is imminent. For example, if the West Virginia legislature were about to vote on a bill to repeal the statutes at issue, it might in some cases make sense to refrain from addressing the constitutional issue until the vote is held. But West Virginia legislative activity on same-sex marriage has been very sporadic, and no changes are imminent. To abstain from hearing a federal constitutional challenge in that situation would greatly reduce the reach of the federal Constitution as the mere possibility of state legislative action, combined with some sporadic history of past legislation (some of which on the facts of McGee resulted from attempts to strengthen the provision being challenged) would paralyze the federal courts. Burford abstention should not be required by the sort of sporadic former legislative action that was present in McGee.

Brett Turner, Senior Attorney, National Legal Research Group

     As the courts struggle to implement the Windsor opinion, there will inevitably be steps forward and steps backward. A notable step backward is Virginia Attorney General Opinion 13-102, released by outgoing Virginia Attorney General Ken Cuccinelli on January 10, 2014—the very last day of his tenure as attorney general.

     The opinion answers an inquiry from a Virginia state senator, asking whether "public sector health plan sponsors" in Virginia must follow United States Department of Labor Technical Release 2013-04. That Release provides that administrators of benefit plans regulated by the federal Employee Retirement Income Security Act of 1974 (“ERISA”) must recognize same-sex marriages if those marriages are valid in the state where the marriage took place.

     Most benefit plans regulated by ERISA are private plans, but federal law also regulates certain public sector health plans in states that accept federal funding under the Public Health Service Act. E.g., 42 U.S.C. § 300bb‑1. By accepting federal funds for public health, these states have voluntarily agreed that group health plans for public sector employees will be subject to federal requirements. 

     Mr. Cuccinelli opined that Virginia administrators of public sector health plans need not follow the position taken by the Department of Labor—the federal agency responsible for construing ERISA. He took the position that Windsor did not require any state to accept same-sex marriage and that section 2 of the Defense of Marriage Act (“DOMA”) remains valid.  That statute provides that federal law shall not require any state to recognize same-sex marriage. He finally cited Virginia's constitutional provision against same-sex marriage, Va. Const. art. I, § 15-A, which prevents any recognition of same-sex marriage. 

     Given that federal law necessarily controls the operation of federally regulated benefit plans, Mr. Cuccinelli's insistence that state law nevertheless be followed brings to mind John C. Calhoun's insistence that states can nullify operation of any federal law within their borders—a doctrine that did not survive the Civil War. 

     As interesting as the position that Mr. Cuccinelli took is the position that he chose not to take. Federal regulation of public sector health plans appears to be rather narrow, focusing mainly upon rights to continued coverage after termination. 42 U.S.C. § 300bb‑1. In addition, all group health plans, whether public or private, are required to follow certain basic requirements, such as avoiding any exemption for preexisting conditions, see 42 U.S.C. § 400gg-3, as a result of the health-care reform law popularly known as Obamacare.

Brett Turner, Senior Attorney, National Legal Research Group 

     A federal district court in the Northern District of Oklahoma has held that Oklahoma's constitutional provision barring same-sex marriage violates the federal Constitution. Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014).

     The rationale is based heavily upon the second part of the Windsor opinion, which held that DOMA section 3 was invalid because it was enacted with intent to discriminate against gay couples. The court cited strong evidence that the purpose of the Oklahoma provision was to express moral disapproval of same-sex marriage. The court continued:

The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence [v. Texas], 539 U.S. [558], 571 [2008)] (explaining that moral disapproval of homosexual conduct was shaped by "religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family"). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577 ("'[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'") (quoting and adopting Justice Stevens' dissent in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)). Preclusion of "moral disapproval" as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State's interest in upholding one particular moral definition of marriage, this is not a permissible justification.

Id. at *27 (footnote omitted) (some citations  omitted).